8 Reasons to Fear Judicial Activism

Judicial activism is the subject of the cover story in this month’s Townhall Magazine. The article, by Committee for Justice Executive Director Curt Levey, attempts to cut through efforts to “blur and distort the definition of judicial activism” by clarifying, in layman’s terms, what judicial activism is and what it is not. Levey notes that

“[T]he purveyors of judicial activism – and its handmaiden, the ‘living Constitution’ – try hard to blur the distinction between activist and legitimate court decisions. So it’s important to clarify that true judicial activism is marked by the elevation of a judge’s policy preferences above objective interpretation of the law, such that the resulting decision is not plausibly grounded in the common sense meaning or original intent of the constitutional or statutory text at issue.”

The article lays out the common forms of judicial activism – construing black as white, twisting legal doctrines beyond recognition, inventing new rights, ignoring old rights, and playing policymaker – while providing examples of each. It then tackles popular but misguided definitions of judicial activism, explaining that a court’s decision is not necessarily activist because it 1) overturns actions by the other branches of government, 2) doesn’t follow precedent, 3) arguably should have gone the other way, or 4) angers conservatives. “Conservatives have every reason to be angry about judicial activism,” Levey notes, “but they handicap the battle against it when they overuse the term.”

Of course, conservative judges are sometimes guilty of activism themselves. But for the most part

“[C]onservative judges can’t compete when it comes to judicial activism, because they’re not even trying. Sure, their biases sometimes cloud the objective interpretation they shoot for. But many liberal jurists don’t even shoot for objectivity. Instead, they are proud of belonging to the school of judging exemplified by Barack Obama’s yearning for a judge who will ‘bring in his or her own perspectives, his ethics, his or her moral bearings.’”

Because judicial activism is such a jurisprudential disgrace, it’s easy to overlook the specific reasons why it is dangerous. Accordingly, the article reminds us of eight such reasons:

1) “Because judicial activism lacks any standards, it cedes unchecked power to judges.”

2) Judicial activism is intentionally anti-democratic. “The progressives who fuel judicial activism from inside and outside the judiciary are committed to using the courts to achieve political agendas that are too far out of the mainstream to be enacted through democratic means.”

3) Judicial activism “is part of a concerted effort to impose the values of the intellectual elite on the average American. “

4) Judicial activism compromises American sovereignty by encouraging reliance on international law. “After all, when you’re discovering new rights, you may not be able to find any support in the myriad of domestic sources of law.”

5) The Framers “provided us with a democratic method of constitutional evolution, namely the amendment process.” But the amendment process has withered “[b]ecause of the availability of an easy alternative – judicial activism.”

6) As Roe v. Wade exemplifies, judicial activism “[d]istorts the political process and prevents compromise.”

7) The circus that judicial confirmations have become is “the inevitable result of judicial activism, which sanctions the politicization of judging, while also raising the stakes in selecting judges who will wield nearly unlimited power.”

8) The living Constitution’s “greatest evil [is] the harm done to U.S. citizens when the Constitution and laws that protect us are pushed aside with the stroke of an activist judge’s pen.”

Given the danger posed by judicial activism, it is no wonder that

“The American people … are acutely aware of the problem. … [A] 2005 survey by the American Bar Association revealed that Americans, by an almost two-to-one margin, agree that judicial activism ‘seems to have reached a crisis. Judges routinely overrule the will of the people, invent new rights and ignore traditional morality.’”